18 A. 374 (N.J.Super.Ch. 1889), Widow v. Burnet's

Citation:18 A. 374, 46 N.J.Eq. 144
Opinion Judge:PITNEY, V. C.
Party Name:BURNET'S WIDOW v. BURNET'S EXECUTOR AND DEVISEES
Attorney:Mr. Mills, for the complainant. Mr. Forsyth, for the defendants.
Case Date:October 01, 1889
Court:Superior Court of New Jersey
 
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Page 374

18 A. 374 (N.J.Super.Ch. 1889)

46 N.J.Eq. 144

BURNET'S WIDOW

v.

BURNET'S EXECUTOR AND DEVISEES

Court of Chancery of New Jersey

October 1, 1889

On bill, answer and proofs.

This is a friendly suit by a widow against her husband's executor and devisees, the latter being her infant children. The subject of the controversy is the sum of $ 2,526.59, part of the proceeds of the sale by the executor of certain mortgaged real estate of the testator situate in New York. Its ownership depends upon the construction of the testator's will in connection with the widow's right of dower in the lands sold.

The facts are as follows: Henry R. Burnet, the testator, and husband of the complainant, lived and was domiciled at Madison, Morris county, New Jersey, and died there January 7th, 1888. He left little or no personal property but was seized of considerable real estate in both New Jersey and New York; that in New Jersey being worth about $ 40,000, and free from mortgage encumbrance; that in New York was worth $ 60,000 or more, and was encumbered by three mortgages, amounting in the aggregate to $ 11,000, one of which was given prior to his intermarriage with the complainant, and two afterwards, in which latter the complainant joined. He also owed about $ 14,000 of other indebtedness, about half of which was in the form of a judgment confessed by him in this State shortly before he died.

His will, dated December 13th, 1887, four weeks before his death, omitting the formal parts, is as follows:

"First. It is my will, and I do order and direct, that all my just debts and funeral expenses and testamentary charges be duly paid and satisfied out of my personal estate by my executors hereinafter named and appointed as soon as conveniently can be after my decease.

"Second. In case my personal estate shall be insufficient to pay my just debts, funeral expenses and testamentary charges, I further order and direct, and hereby authorize and empower my executor to sell, either at public or private sale, and for such prices as he shall adjudge expedient, such parts of my lands and real estate situate, lying and being in that part of the city of New York called Morrisania, as may be necessary for that purpose, and to make, execute and deliver good and sufficient deeds of conveyance to the purchasers thereof; and the proceeds of such sale or sales to appropriate and use to and for the payment of said debts, expenses and charges.

"Third. All the rest, residue and remainder of my estate, real, personal and mixed, and wheresoever the same may be situated, which I shall die seized of, possessed of or entitled to, I give, devise and bequeath to my son, James Edgar Burnet, and my daughter, Mabel Howard Burnet, equally, share and share alike, to have and to hold the same to the said James Edgar Burnet and Mabel Howard Burnet, their heirs, executors, administrators and assigns forever.

"Fourth. I nominate and appoint my brother, Benjamin W. Burnet, of Madison, New Jersey, sole executor of this my last will and testament."

The executor, finding the personalty insufficient to pay the debts, or any considerable part of them, took measures, as directed by the will, to sell a competent portion of the real estate therein mentioned for that purpose. To that end he applied to the complainant to unite in the sale and release her dower to so much of the lands as he should find it necessary to sell in order to pay the debts. This she declined to do unless her right of dower therein was secured to her, and claimed dower in the whole lands, without any abatement on account of the existing mortgages. The executor admitted her right of dower in the equity of redemption and in whatever surplus the lands should produce over and above the mortgages, but denied that it extended any further. Thereupon the parties entered into an agreement which fixes the value of the widow's dower at a sum in gross equal to twenty-one and sixty-four hundredths per cent. of the proceeds of sale, provides for her joining in the conveyance and for payment to her out of that percentage, of the excess of the sale over the amount of the mortgages, and for a deposit in the Howard Savings Institution of Newark of that percentage on the amount of the mortgages, to await the event of a suit to determine her right in it.

The sales then proceeded (the widow joining in the conveyances) until they amounted to $ 29,000, twenty-one and sixty-four hundredths per cent. of which amounted to $ 6,158.19. Of this sum $ 3,631 were paid to the widow, and $ 2,526.59, representing twenty-one and sixty-four hundredths per cent. of $ 11.672.33, the amount of principal and interest due on the mortgages, were deposited in the Howard Savings Institution to await the event of this suit.

The widow then filed her bill, claiming the fund in question.

At the hearing, proof of the law in the State of New York was made by offering in evidence the Revised Statutes of that State of 1827 and 1828, as found in Banks, 5th ed. of 1859, and the decisions of the court were proved by offering in evidence a large number of the reports of decided cases found in the regularly published reports of that State.

Mr. Mills, for the complainant.

Mr. Forsyth, for the defendants.

OPINION

Page 375

[46 N.J.Eq. 146] PITNEY, V. C.

Counsel for the complainant rested her right to the fund in question mainly on two grounds:

First. He contended that the wife, in joining with her husband in releasing her inchoate right of dower to secure his debt, assumed and occupied the position of a surety for him, and acquired all the rights of a surety, and, among them, the right to have the debts so secured paid out of any assets which the husband may leave, including land; and that the payment of such debts should and did exonerate the lands mortgaged from the lien of the mortgages, so far as her dower is concerned, and, [46 N.J.Eq. 147] as a result, that there being sufficient assets, whether of personalty or realty, to pay the debts secured by mortgage, as well as all others, and leave a sum sufficient to satisfy her right of dower in the whole premises, she is entitled to have dower admeasured as if there were no mortgage, or as if the mortgages had never been executed by her.

Second. He contended that the lands having been sold by the express direction of the testator for the purpose of raising money to pay all his debts, including those secured by mortgages, the latter must be considered and treated as paid and discharged to all intents and purposes the same as if they had been so paid and discharged by the testator in his lifetime, or, after his death, by his executor out of personal property left by him. In this connection he contended that the complainant was entitled to dower in the lands mortgaged against all the world except the mortgagee or his assignee, and it was only when the lands were sold under foreclosure of the mortgage that the widow was confined to dower in the surplus; and, further, that, in this case, by the true construction of the will, the proceeds of the sale of these lands must be considered as converted into personalty, and, as a result, that the mortgages must be considered as having, in effect, been paid out of the personal estate left by decedent.

He further contended that the will must. be construed and applied to the circumstances according to the law of the domicile, and not according to that of the State of New York.

With regard to the last point, I am of

Page 376

opinion that, so far as complainant's equity depends upon her right of dower, it must be regulated and determined by the statutes and decisions thereon of the State of New York. Whart. Confl. L. § 273; Story Confl. L. § 448; Nelson v. Bridport, 8 Beav. 547, 10 Jur. 1043.

I deem this point of little consequence, since I think it will appear that, so far as this case is concerned, there is very little, if any, difference in the state of the law in the two States.

By the common-law rule prevailing both in England and in this country at the beginning of this century, a widow was not endowable of an equity of redemption. If she once joined her husband in the statutory method in a conveyance of his lands by [46 N.J.Eq. 148] way of mortgage her dower in those lands was forever gone, unless the mortgage debt was not only paid and discharged, but the title revested in her husband in his...

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